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Wilburn v. J.A. Terris

United States District Court, E.D. Michigan, Southern Division

April 30, 2015

TIMOTHY D. WILBURN, SR., Petitioner,
v.
J.A. TERRIS, Respondent.

OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR WRIT OF HABEAS CORPUS BROUGHT PURSUANT TO 28 U.S.C. § 2241

GERSHWIN A. DRAIN, District Judge.

I. INTRODUCTION

Timothy D. Wilburn, Sr., ("Petitioner"), a federal prisoner confined at the Federal Correctional Institution in Milan, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his application, filed pro se, petitioner challenges his sentence enhancement under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). For the reasons stated below, the petition for writ of habeas corpus will be SUMMARILY DENIED.

II. BACKGROUND

Petitioner was convicted of being a felon in possession of a firearm following a jury trial in the United States District Court for the Eastern District of Wisconsin. Petitioner was sentenced to the statutory minimum term of 15 years under the provisions of the Armed Career Criminal Act after a finding that he had three prior violent felony convictions. Petitioner's conviction was affirmed on appeal. United States v. Wilburn, 473 F.3d 742 (7th Cir. 2007), cert. denied, 551 U.S. 1123 (2007).

Petitioner filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255, which was denied. United States v. Wilburn, No. 08-C-411 (E.D. Wis. February 10, 2009). Petitioner was then denied authorization to file a successive motion to vacate sentence twice by the United States Court of Appeals for the Seventh Circuit. See Wilburn v. United States, No. 10-2558 (7th Cir. July 8, 2010); Wilburn v. United States, No. 12-3784 (7th Cir. December 21, 2012).

Following the denials from the Seventh Circuit, Petitioner filed a motion for relief from judgment under Rule 60(b)(6) of the Federal Rules of Civil Procedure in the Wisconsin district court, which the district court denied, finding it to be an unauthorized second or successive motion to vacate sentence. See United States v. Wilburn, No. 04-CR-80, 2012 WL 5438990 (E.D. Wis. November 6, 2012).

The district court subsequently denied petitioner's motion to amend his § 2255 motion because his original § 2255 motion was no longer pending and had been deemed to be a successive motion. The Court directed the Clerk of Court to open a new civil action before dismissing the action for lack of jurisdiction. See United States v. Wilburn, No. 08-C-411, 2013 WL 1403057 (E.D. Wis. Apr. 5, 2013).

Nevertheless, Petitioner filed yet another motion to vacate sentence, which was again denied because it was an unauthorized successive motion to vacate sentence. See United States v. Wilburn, No. 04-CR-80, 2014 WL 2807539 (E.D. Wis. June 20, 2014). The Seventh Circuit denied petitioner's motion for a certificate of appealability from this dismissal, finding his appeal to be frivolous. See Wilburn v. United States, No. 2428 (7th Cir. November 18, 2014). Petitioner has now filed a petition for writ of habeas corpus in this Court seeking habeas relief.

III. DISCUSSION

A. STANDARD OF REVIEW

A federal prisoner may bring a claim challenging his conviction or the imposition of sentence under 28 U.S.C. § 2241 only if it appears that the remedy afforded under § 2255 is inadequate or ineffective to test the legality of the defendant's detention. See Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012). Habeas corpus is not an additional, alternative, or supplemental remedy to the motion to vacate, set aside, or correct the sentence. See Charles v. Chandler, 180 F.3d 753, 758 (6th Cir. 1999).

The burden of showing that the remedy afforded under § 2255 is inadequate or ineffective rests with the petitioner, and the mere fact that a prior motion to vacate sentence may have proven unsuccessful does not necessarily meet that burden. In Re Gregory, 181 F.3d 713, 714 (6th Cir. 1999). The remedy afforded under § 2255 is not considered inadequate or ineffective simply because § 2255 relief has already been denied, because the petitioner has been procedurally barred from pursuing relief under § 2255, or because the petitioner has been denied permission to file a second or successive motion to vacate sentence. Wooten v. Cauley, 677 F.3d at 303; Charles v. Chandler, 180 F.3d at 756.

The mere fact that the provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) might prevent a petitioner from filing a second or successive motion to vacate or set aside the sentence-in the absence of newly discovered evidence or a new rule of constitutional law-does not render the remedy provided by such motion inadequate or ineffective to allow him to petition for habeas corpus relief under 28 U.S.C. § 2241. See Hervey v. United States, 105 F.Supp.2d 731, 733 (E.D. Mich. 2000). Similarly, a habeas petitioner's § 2255 remedy is not ...


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